Win in the Employment Tribunal for Victimisation –Amber vs West Yorkshire Fire and Rescue Service.
Cole Khan client, Tayba Amber has succeeded in her claims of victimisation against her former employer, West Yorkshire Fire and Rescue Service.
On 31 October 2024, a full tribunal chaired by EJ Jones, sitting in the Leeds Employment Tribunal unanimously found that West Yorkshire Fire and Rescue Service victimised our client, Ms Amber as a result of her protected act of raising a grievance alleging sexual harassment against her manager and issuing proceedings in the Employment Tribunal in September 2021 for race discrimination.
This judgment highlights the duty and necessity of employers to respect the rights of employees, to raise complaints both internally and in the Employment Tribunal and ensure that they do not impose any action which is detrimental or retaliatory once allegations of discrimination have been made.
The claim will now be listed for a one-day remedy hearing to determine the level of compensation that Ms Amber is to be awarded, which will also include an assessment of aggravated damages
Summary of Claim
Ms Amber was employed as an Information Governance Officer for six years. She raised initial grievances alleging race discrimination, race related harassment, victimisation and whistleblowing.
In March 2022, she went on extended sick leave, attributing her stress to ongoing bullying and harassment by her line manager, a key figure in her original claim. The Employment Tribunal recognised that she also met the definition of a disability under Equality Act 2010.
During a return-to-work discussion in August 2022, a senior director made several personal disclosures about his own life, including his marital issues and feelings of loneliness which Ms Amber found highly uncomfortable and inappropriate; this unsettling encounter led her to file a grievance for sexual harassment.
In December, she also submitted a grievance against the HR Director, who inaccurately asserted that she had not submitted the necessary fit notes and threatened to suspend her pay. Despite evidence proving otherwise, he persisted in his criticisms and further undermined her by sending an unsolicited email to her therapist that portrayed her as an unreasonable complainant.
In January 2023, Ms Amber was informed that her grievance was not upheld. The Respondent dismissed her allegations as ‘misunderstandings’ and the Senior Director’s conduct was deemed to be an attempt to build rapport.
Findings of the Tribunal
In a 33-page Judgement handed down on 31 October 2024, the Panel held that the Respondent victimised Ms Amber as follows:
By the unreasonable and unfair handling of her grievance of sexual harassment against a senior director, and failing to make findings about all matters within it
It was held that the Respondent did not follow ACAS guidelines or the company’s own procedures, both of which required a meeting with Ms Amber. The Tribunal noted that the Respondent was eager to limit the risks associated with a Director facing allegations of sexual harassment from a junior employee and that “by the curtailing of the procedure in which only the person accused and not the complainant is afforded a face-to-face interview, to the subsequent failure to disclose relevant material is of an organisation seeking to shut down those risks.”
The judgment confirmed that the grievance outcome failed to engage meaningfully with the Ms Amber’s specific allegations, instead generalising her concerns. This “broad-brush” approach reflected a failure to address Ms Amber’s complaints in good faith. The way in which the grievance was dealt with was unreasonable and unfair and went to the heart of the victimisation claim. The Tribunal found that the fact that the sexual harassment claim was not upheld did not assist the Respondent.
2. By making a disproportionate threat to suspend her pay because she had not submitted a fit note and unfairly criticising her for not maintaining contact with her manager.
The Tribunal agreed with that the tone in his correspondence during 5-6 December “was unduly insensitive and inconsiderate.” And that when he was proved wrong about the submissions of the fit notes “he grudgingly blamed the claimant for not keeping in touch with her manager.”
3. Sending an email to her therapist in which she was portrayed as an unreasonable complainant
The Respondent’s actions not only violated Ms Amber’s privacy but could be seen as an attempt to undermine her credibility. The Tribunal’s finding that this communication had no legitimate purpose and was primarily intended to portray her unfavourably is significant, correctly highlighted that the Senior Director contacted Ms Lewis to portray her “negatively” and in “unfavourable light”.
The Claimant was found to be a disabled person, and the Respondent knew or could reasonably have been expected to know that, from 4 April 2022.
The claims for direct race discrimination, disability discrimination in the form of failing to make reasonable adjustments, harassment related to sex or of a sexual nature, constructive unfair dismissal and the remaining complaints of victimisation were dismissed.
Aggravated Damages
The Tribunal went on to consider that the Respondent put obstacles in the Claimant’s path, and their conduct has added to her upset and injury, to the extent that aggravated damages may be awarded. — Aggravated damages are only rarely awarded, and this reflects the severity of the Respondent’s conduct, which included persistent procedural failures, inadequate disclosure practices, and their continued resistance to acknowledging the Claimant’s disability.
The Respondent was notably insistent throughout proceedings that Ms Amber had not provided sufficient evidence of a substantial impact on her day-to-day activities. The Tribunal held that “Not being able to work is a day-to-day activity which is substantial, that is more than trivial. The claimant was assisted with medication without which the symptoms can be inferred to have been far worse”.
Significant flaws in the Respondent’s handling of document disclosure were highlighted throughout the case. The Tribunal held that this conduct added to Ms Amber’s “sense of upset and frustration and enhanced any injury she had.”.
Ms Amber instructed Founding Partner Emilie Cole, and Frances Onyinah, Trainee Solicitor at Cole Khan Solicitors LLP, to represent her in her second employment claim against West Yorkshire Fire and Rescue Service. Reflecting on her client’s win, Frances said:
QUOTE:
“This decision underscores the critical importance of holding employers accountable, emphasising that employees who have previously lodged proceedings against their current employer must not face further detriment. It reinforces the principle that employers should never feel emboldened to retaliate against those who seek to uphold their rights in the workplace.”
Tayba Amber, was represented in the Employment Tribunal by Andrew Allen KC of Outer Temple Chambers.
An earlier version of this article began with the words “Win in the Employment Tribunal for Race and Sexual Harassment Victimisation” in the title and we would like to make clear that although the Claimant succeeded on 3 aspects of her victimisation claim (for making claims of race discrimination and sex harassment), she was unsuccessful in her race and sexual harassment claims which were dismissed. We have agreed to make an appropriate donation to a woman’s charity in recognition of this and any misunderstanding which may have arisen. The public judgment will soon be available online.